Lies the government told you (10 page)

The direct election of senators was a popular idea until the end of the nineteenth century. The very first resolution calling for direct election was introduced in the House of Representatives on February 14th 1826, eighty-six years before the Seventeenth Amendment was ratified.
¹⁴
In the interim, 187 comparable resolutions were introduced in Congress, 167 of which were introduced after 1880.
¹⁵
Concern over the original selection of senators increased as the methods by which the States chose their U.S. Senators proved cumbersome for the U.S. Senate, which, pursuant to Article I, Section 4, is entrusted with determining whether its members have been appropriately chosen.
¹⁶

Since Article I, Section 3, does not specify the manner in which state legislatures must select their U.S. Senators, the States’ selection methods were not uniform. Some senate elections resulted in “legislative deadlock,” where no candidate received a majority of the state legislature’s vote.
¹⁷
To avoid having to review elections, the Senate, with approval by the House of Representatives, passed legislation in 1866 exercising greater control over senate elections.
¹⁸
The legislation, which is a clear example of federal imposition on states’ rights, also proved to be highly ineffective, as legislative deadlocks increased drastically.
¹⁹
It was also unconstitutional.

Charges of bribery and corruption stemmed from the deadlocks that the 1866 legislation created.
²⁰
Between the passage of the 1866 act and 1900, the Senate investigated potential bribery in nine senate election cases, and had investigated five more cases by 1912.
²¹
Corruption was found in a very limited number of cases, but the investigations were highly publicized, and supported the notion that state legislatures could not be trusted.
²²

Furthermore, the development of Populism and Progressivism— two demons that have only destroyed individual liberty—pushed for a change in the way senators were selected.
²³
The Populists characterized the Senate as a “millionaires club” that was “too far removed from the people, beyond their reach, and with no especial interest in their welfare.”
²⁴
Progressivism, a movement that developed as Populism declined, supported a democracy in which the people directly chose all of their representatives.
²⁵
Despite the Founders’ ideas, Progressives believed that Americans had become “a new people living and acting under an old system.”
²⁶
Progressivism was, and is, based on what I like to call the Gang theory and the Robin Hood theory of government.

The Progressives believe that all power goes to the gang that gets the most votes, and thus all structural efforts to temper that power— like federalism, states’ rights, even natural rights—must give way to the majority’s will. Progressives also believe that somehow, from somewhere, from some source other than the Constitution, they can use the power of government to steal from those who have and give to those who do not. Woodrow Wilson led the Progressives in the Democratic Party, and Theodore Roosevelt led the Progressives in the Republican Party. By promoting and enacting just two amendments to the Constitution—the Sixteenth, which purported to permit taxes on personal incomes; and the Seventeenth, discussed herein—these pernicious little tyrants destroyed many property rights, much federalism, and a great deal of personal freedoms.

The Seventeenth Amendment was approved by Congress on May 12th 1912, and ratified by three-quarters of the States on May 31st 1913. The Amendment states, in part, that “[t]he Senate of the United States shall be composed of two Senators from each State, elected by the people thereof. . . .” This Amendment is a mortal blow to the concept of federalism, as it prevents state legislatures from having any influence in the federal government. Sure, the Amendment ensures that all members of Congress are elected by the people, but the people of an entire state are unable to affect the actions of their U.S. Senators; they can only vote them out of office after their lengthy, six-year terms. Furthermore, the people of every State are not trained to influence federal government policy, and would not know what to do even if given the opportunity to communicate with their senators.
²⁷

We live in a representative democracy, not a true democracy, and we trust our representatives to look out for our best interests. The original Constitution provided our state legislatures control of our U.S. Senators, but the Seventeenth Amendment took the power out of their
hands, rendering the States defenseless against federal government abuses. It is no coincidence that the size of the federal government has grown exponentially since 1913 and U.S. Senators have been controlled by special interests often exercising their influence from outside the States that the senators represent.

Repealing the Seventeenth Amendment would not attract the same problems that led to its passage in 1913. Today, we can protect ourselves against corrupt state legislatures through term limits and campaign disclosure statements.
²⁸
Also, information on our government officials is highly visible.
²⁹
Moreover, to protect against deadlocked state legislatures, the governor of a State could appoint a U.S. Senator if the State’s legislature does not elect a senator or fill a vacancy within thirty days.
³⁰

If any amendment is unconstitutional, it is this one. Can an amendment to the Constitution be unconstitutional? I submit it can, even if lawfully adopted, if it strikes at the core values of the Constitution. Removing the representation of the States as States in the central government was a direct and impermissible assault on federalism; more tyranny of the majority. It undermines the premise that the people
and the States
would have a place at the federal table. It also undermines the States’ check on federal corruption of states’ rights. This amendment, along with the Sixteenth (which permitted federal income taxes), has contributed more to
1984
-style Big Government than any other. It is a direct repudiation of the framework the Founders set up. If anyone tells you that this Amendment enfranchises voters, tell that person that the Amendment disenfranchises the States.

The Fifteenth Amendment, Voting Rights Act,
and Racial Gerrymandering

In 1870, the United States ratified the Fifteenth Amendment, which prohibits voting discrimination “by the United States or by any State on account of race, color, or previous condition of servitude.”
³¹
The governments in the South did not adhere to this amendment and did much to prevent blacks from voting.
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Literacy tests were administered to disqualify the substantial black population that could not read or write.
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Property requirements were also implemented to prevent blacks from voting.
³⁴

Furthermore, Southern governments used various districting techniques to dilute the African-American vote. One of these techniques is “cracking,” in which the legislature split a large number of black voters among several majority-white voting districts.
³⁵
The same governments also engaged in “packing,” in which a significant number of African-Americans were placed in one district, thus limiting black representation in that part of a State to that district only.
³⁶

The Southern States continued to disobey the law, and the federal government permitted them to do so until Congress finally passed the Voting Rights Act of 1965. Section 2 of the Act, as amended in 1982, states that “no voting qualification or prerequisite to voting or standard, practice or procedure shall be imposed or applied by any State or political subdivision in a manner which will result in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

Therefore, according to the Act, complainants need only prove that a voting plan had the
effect
of discriminating against minorities, not that it was devised with the
intent
to discriminate.

Today, the concern is not whether African-Americans actually have the right to vote, but whether they are adequately represented.
³⁷
To ensure adequate representation for African-Americans (and other minorities), many States have redrawn congressional district lines based on race, through a process called racial gerrymandering, to create “majority-minority” districts.
³⁸
In this way, States can guarantee representation for minorities. But isn’t this a government decision based on race; and was not the Fourteenth Amendment written to abolish that? In
Shaw v. Reno
(1993), the United States Supreme Court held that redistricting based on race is subject to the highest standard of judicial scrutiny under the Equal Protection Clause of the Fourteenth Amendment, but the States still may take race into account to comply with the Voting Rights Act.
³⁹

Shaw v. Reno
tells us that racial gerrymandering is constitutional if the plan is “narrowly tailored to serve a compelling state interest.” Could any racial gerrymandering plan, regardless of its lawfulness, be constitutional today? Majority-minority districts are unnecessary, particularly due to the advances African-Americans have made in this country.
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Conservative whites do not vote for black candidates, particularly in the South, not because they are racist, but because the liberal views associated most with African-Americans are not attractive to conservative whites, regardless of the candidate’s color.
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Furthermore, the existence of majority-minority districts reinforces racial differences, when the goal of the Voting Rights Act and Civil Rights Movement was to achieve color blindness and equality.
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The 2008 presidential election is further evidence that racial gerrymandering is unnecessary.
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Barack Obama did not win an overall majority of white votes, but no Democrat since Lyndon B. Johnson in 1964 has won the majority of the white vote.
⁴⁴
Obama captured 43 percent of the white vote, a slightly
higher
percentage than that of Al Gore (42 percent) in 2000, and John Kerry (41 percent) in 2004.
⁴⁵
In Iowa, which has a negligible black population, 5 percent of voters said that race was the most important factor in the election.
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However, 54 percent of Iowans voted for Obama.
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Obama achieved similar results in Minnesota and Wisconsin, states that are also predominantly white.
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This data shows that black candidates can win elections, even in majority-white areas. In fact, as early as 1990, 40 percent of the black members of Congress did
not
come from majority-black districts.
⁴⁹

Another major problem with racial gerrymandering is that it involves blatant government manipulation of people. Legislators redistrict all the time to achieve desired results. They group people together based on how they think they will vote. There is something fundamentally wrong with this tactic; it is unconstitutional, it is manipulative, it is patronizing, and it infringes upon all citizens’ right to vote.

Collectivism is a political theory that favors the group over the individual. It is a philosophy diametrically at odds with the American concept of individual liberty and limited government. According to Ayn Rand, “[c]ollectivism holds that man must be chained to collective action and collective thought for the sake of what is called ‘the common good.’” By engaging in racial gerrymandering, legislatures are operating under the false and dangerous premise that all members of a particular race will support a similar candidate, and promoting collectivist ideals, thus “chaining” individuals to their respective races.

The right to vote in America is an
individual
right, not a collective one; one may vote because one is a citizen, and at least eighteen years old, not because one belongs to a group the membership in which is some immutable characteristic of birth. On Election Day, we select our representatives by secret ballot, and we choose our candidates based on their ability to protect our individual rights, not the rights of the group of people with which we most closely identify. (Though surely, many voters are more interested in voting for a Robin Hood than a Thomas Jefferson.) Most of us choose not to reveal the candidates we voted for, and it is considered rude to ask another directly how he or she voted.

Racial gerrymandering takes the individual out of the voting process, and divides large groups of individuals into smaller voting blocs based on race. Legislatures create “majority-minority” districts to ensure that the African-American community, or the Hispanic community, or the Italian-American or Irish-American or Jewish-American communities receive fair representation, not the individual African-American or Hispanic or Italian-American or Irish-American or
Jewish-American voter. It is true that certain groups typically vote the same way, but it is not a government’s job to assume that the “common good” will be served if it artificially groups people so as essentially to rig election results.
Individuals
should decide, and let the chips fall where they may.

If the purpose of the Fourteenth and Fifteenth Amendments was to remove race from the government’s weapons, racial gerrymandering has nullified that purpose.

An “Unpopular” Decision

I opened this chapter with one of the most contentious voting events of our history, where the Supreme Court essentially decided the result of the 2000 presidential election. The Supreme Court’s decision in
Bush v. Gore
is so disheartening not because Vice President Al Gore received over 539,000 more popular votes than Governor Bush, but because the Supreme Court disregarded not only the fundamental right to vote, and in turn kept us from discovering the true winner (whoever it may have been),
⁵⁰
but it assaulted federalism by denying the State of Florida the ability to manage its mechanisms of voting and interpreting its own laws.